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Wagner v. FEC

From the Boston Tea Party of 1773 to today’s Tea Party
movement, from suffragists to Occupiers, freedom of political
association has always been this country’s hallmark.
Importantly, this First Amendment freedom extends to campaign
contributions. As the Supreme Court affirmed in the 1976 case
Buckley v. Valeo,“the right of association is a
basic constitutional freedom that is closely allied to freedom of
speech and a right which, like free speech, lies at the foundation
of a free society.” The Buckley ruling has since
survived many assaults—including, most notably, Citizens
United v. FEC—though Citizens United exposed
certain instabilities in Buckley’s framework.
In any event, challenges continue to arise at the intersection
of campaign finance law, political association rights, and the
freedom of speech. This latest one comes from three individuals who
have business contracts with the federal government. Under the
Federal Election Campaign Act’s section 441c(a), “any
person who is negotiating for, or performing under, a contract with
the federal government is banned from making a contribution to a
political party, committee, or candidate for federal
officer.” Accordingly, the three plaintiffs are prohibited
from making their intended campaign contributions and thus from an
important form of political participation. This rule applies even
to someone like name plaintiff Professor Wendy E. Wagner, who
derives only a fraction of her income from the federal contract.
Together with the Center for Competitive Politics, Cato has filed
an amicus brief with the U.S. Court of Appeals for the D.C.
Circuit, arguing that the plaintiffs should be able to exercise
their right to political association and speech by contributing to
political campaigns. Specifically, we argue that section 441(c) is
unique in that it entirely bans contributions by a class of
individual citizens. In McConnell v. FEC,the only case
where the Supreme Court addressed an outright ban on contributions
by a class of individuals—the ban on campaign contributions
by minors originally in the McCain-Feingold campaign finance
“reform,” which McConnell otherwise
substantially upheld—the Court struck it down as overly broad
and because the government didn’t give sufficient
justification. What’s clear from that ruling is that for a
ban on political speech and association to be constitutional, the
government must show that its targeted class of people is somehow
too dangerous to be allowed to participate in the political
process, and also that the ban applies only to that set of uniquely
dangerous people. Section 441(c) doesn’t meet this test. If
the government wants to ban her from this important form of
political participation, then it must give more than bare
assertions of the specter of potential corruption.